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Sunday, January 17, 2010

Hyper-Minimal States vs. Protective Agencies

So, consider this a continuation of the conversation I began a few months ago about the “state-anarchy continuum.”

Begin with what I'll call a “hyper-minimal state.”

It claims a continguous territory, but the territory for which it is responsible is very small: perhaps between 50 and 2,000 sq. km.

There are no restrictions on emigration or immigration.

Anyone whose property is contiguous with the border may secede at will.

The state performs only two functions: it operates a police force and a court system, with the latter responsible only for resolving property, tort, and contract disputes.

One of the state's courts will hear a case regarding a property, tort, or contract dispute only when the parties have already obtained a decision from a private arbitration/conciliation/mediation entity regarding the dispute and wish to appeal it.

The only role of any of the state's courts with respect to an appeal from a private entity's decision regarding a dispute is to determine whether the parties consented to the jurisdiction of the entity, intended that it be final, and received a clear decision from the entity consistent with the substantive and procedural rules regarding which the parties agreed when entering the dispute.

The only role of the state's police agency will be to prevent or end the use of force associated with the attempt to resist a judgment by a private arbitrator/mediator/conciliator or to protect someone's person or property against an attack not carried out under the color of law.

There is no system of taxation. The police force and the court system are operated using a combination of user fees, donations, and volunteer work.

There are private for-profit, not-for-profit, and volunteer security providers with whose operation the state ordinarily does not interfere.

The interesting question, I think, is, In what does this putative's state's identify as a state consist?

It's not in the limitation on the right to secede. After all, if there were nothing that qualified on other grounds as a state in operation in a given territory, it's not clear what secession would mean: there would be nothing from which to secede.

So: is this putative state a state? Would it qualify as a Randian “final arbiter”? Is it ultimately different from a protective agency and, if so, how?

I have some instincts about this, but before articulating them I'd like to know how readers react.

18 comments:

Are the state courts the *only* courts that disgruntled parties would be able to appeal to outside of the entity that the trial was in? If so, then the hyper-minimal state claims a monopoly on the interpretation of law, which might amount to the privilege of deciding what the rules of other entities really mean. Whether this monopoly is legitimate or an all-out state (I'm assuming by "state" you mean large illegitimate landholding/holder) might depend on a few different things. If the HMS stole the land, it's a coercive monopoly. If it bases its claim to jurisdiction on a legal tool that doesn't make any sense, like writing its authority into the deeds of all land it claims (these days I lean away from perpetual restrictive covenants), then the force it uses might be illegitimate. Also, even if the HMS is a "natural" monopoly, if it's considerably hard to leave then the subjects are practically forced to stay, and the "umbrella court system" is effectively forced onto them. For example, if neighboring countries don't admit anyone, or if they require visas that are insanely hard to get.

I think my question here, in effect, is whether it's possible to show the contemporary neo-Hobbesian that what she thinks of, instinctively, as a state really is just a protective agency. And to do that, I believe we need to test the limits of the concept of "state." (By "state," I mean something that exercises (and claims to exercise legitimately) a monopoly--in the Austrian sense--over the use of force in "its" territory).

So, on to details: I don't envision the state as using its police force to require people to use its courts, so any entrepreneur or not-for-profit entity that wanted to create an appeals court would be free to do so. No monopoly there, I think.

In this hypo, the HMS doesn't own any land, let's say: the court system and the police agency both use land rented at market rates from individuals or groups who (we may assume) own it legitimately.

The HMS doesn't deal directly with deeds: these are handled by private owners. The question, here, I think, though, is, What does it say that an HMS thus described has jurisdiction? (BTW, can you say more about your skepticism about permanent restrctive covenants?)

I think your point about a fact-sensitive inquiry about the HMS's circumstances is entirely appropriate. I had in mind--just to make the hypo difficult--a situation in which the region in which it operates was filled with other, similarly sized HMS's, all characterized by ease of entry and exit.

Let's say, though, that, because of external circumstances, exit did prove difficult. Given that people don't have to use the entity's court system at all, is there anything else it could do that would make it a hyper-minimal state, rather than an entity I've just referred to as a state in my never-ending quest to cause trouble?

Well then, if petitioners can appeal through private courts, and people can protect themselves with private police, then the HMS looks more like a pro-bono PDA. Even if it's hard to leave, there's no monopolized service that residents are subjected to, so I have a hard time calling that a state.

About permanent restrictive covenants: I think restrictions on use are alright when they're demanded by the seller and agreed to by the buyer. From what I read, though, restrictive covenants are made by the developers. Since the covenants "run with the land", current residents can be bound by the preferences of people from generations ago, and that just seems counter-intuitive to me.

My sense is that a covenant is, effectively, a contract with all other residents in a development: each resident effectively contracts with all other residents to do A, B, and C, and agrees to sell only on the condition that the new buyer similarly contract. The agreement isn't, I think, with the developer.

That said, I don't like restrictive covenants either. As you'll see from my earlier post on HOAs, they give me the creeps.

Is there any sense in which the HMS thus described could claim to exercise a monopoly of force in "its" territory?

If the HMS allows other police forces to operate within "its" jurisdiction, and allows other courts to interpret the rules of force within "its" jurisdiction, then I don't know how this is a monopoly of force...Would people be able to appeal to an alternative court if they don't like the HMS ruling?

I believe that as you've formulated it, this would (probably) not count as a state.

However, as a means of bridging the gap between anarchist and minarchist thinking, I don't think it will do the trick. At least not for all minarchists.

For some, the existence of the state is a safeguard mechanism, and thus if you had a 'state' that could be relegated to obscurity and irrelevance entirely (as it seems your model could), it wouldn't provide sufficient assurance to the populace that "anything goes" (as many view anarchy) would ever occur, and this would lead inexorably to rioting, mass cannibalism, dogs living with cats, etc.

I think that those minarchists who see the necessity of the state so clearly would insist on at least a minimal tax. Otherwise, it might be impossible to maintain itself, even if it got the occasional customer. (Imagine the US Post Office surviving without its legal monopoly. It's bankrupt as it is, and would probably completely disappear without constant protection and subsidy.)

Interesting about the minimal tax bit. I excluded that because it's my sense that radical minarchists wouldn't want this either. I believe Rand envisioned a state that function as a "final arbiter" but that paid for itself entirely on the basis of user fees. So I actually didn't see that piece of the envisioned model as overly controversial.

I can't speak for all minarchists, but if your model state is in danger of disappearing or becoming just one of many equivalent protective agencies, that's where certain minarchists would see a great danger. I'm sure there are some minarchists who would be ok with the state disappearing naturally, but others see it as a vital safeguard against anarchy (in the 'horror! horror!' sense). The main purpose of the state (for them) is to provide an absolute guarantee that the law will be applied equally and fairly to all citizens and likewise for police protection. Only a very popular government so constructed could guarantee its survival based on user fees. As soon as it becomes less popular, they couldn't afford to keep the lights on, so to speak. (Actually, literally, too.)

So, I think that's a perfectly reasonable response. But I think this just brings me back to the question that prompted the post in the first place: just what does a minarchist want the state to monopolize? I figured I could take it as a given that a Randian minarchist wouldn't want compulsory taxation; so I wondered what might be left. I'm still wondering.

Like Isaiah, I think it hinges on whether its courts have a monopoly on arbitrating disputes submitted from lower voluntary tribunals. If not, it's really not a state, even though a majority of the community may think of it and use it as a court of last resort, and in some sense consider it a community institution.

Thanks for this. Hasnas's proposal is interesting. Clearly, the remedial state qualifies as a state, given its ability to raise funds via taxation and to enforce anti-monopoly rules.

It seems to me that the potential for abuse vis-a-vis the latter would be among the more obvious challenges to the reasonableness of a remedial state. But I like Hasnas's idea that the establishment of such a state would provide a simple way of testing the claims made by Cowen and others about the viability of anarchy.

Congratulations Gary! I think you have built the magical bridge from minarchism to anarchism. The hypothetical HMS that you describe is indeed a PDA...since it has all the necessary characteristics to be classified as a PDA, but does not have any characteristics that could classify it definitively as a state. It is simply a PDA that has a delineated, contiguous geographical region of operation (such as a grocery store chain that has decided to only operate in a specific geographical region). It is additionally conceivable that there could be multiple such HMSs as you described with overlapping regions of operation without violating any of the HMS properties that you describe. Congratulations!!!

I'm sure there are still issues to be sorted out here. One of them that occurred to me as I was gloating over your comments: what if you and I have a dispute in a private court; if I appeal and you don't consent to the appeal, what gives the HMS court's judgment any validity? Can it force you to accept the judgment? (This is a different question from the earlier one--viz., can the HMS put competitor appellate courts out of business?). If the answer is "no," should the HMS operate a court system at all? If the answer is "yes," it seems as if the HMS really is (gag) a state.

"Can [the HMS] force you to accept the judgment? ... If the answer is 'yes', it seems as if the HMS really is (gag) a state."

Incorrect. Note that PDAs *may* use violence to force an unconsenting party to accept a judgment. Using force on unconsenting parties is not necessarily a definitive property the state. Therefore, answering 'yes' to your question does not mean that the HMS is really a state. Of course us market-anarchists argue that force would hopefully be used rarely, since PDAs are concerned about their public reputation, customer satisfaction, cost of enforcement, profit, third party appeals, etc., and would thus avoid doing so except as a last resort.

Another reason that such a HMS is not a state is that the HMS as you describe cannot defacto (dejure is a different story) prohibit other competing HMSs/PDAs from responding to the first HMS's use of force and successfully intervening on behalf of the unconsenting party. Such a situation is entirely possible and permissible under market-anarchy.

If the answer to your question is 'no', then such a HMS is simply an private court service which simply offers legal services (in the form of layers, detectives, investigators, scientists, ballistics experts, pathologists, criminal psychologists, etc.) on a voluntary basis. Again, the existence of such a legal firm is entirely permissible in a market-anarchist society.

Regarding the "validity" of *the* HMS ruling, ultimately at the end of the day, someone or some PDA might use violence against an unconsenting party. Is is "valid"? Is their such a thing as objective "validity" of HMS court rulings? I would argue that your question on the "validity" is irrelevant to the discussion of HMS vs Minarchism. Ultimately there are many people living in society, each with different knowledge, life experiences, interpretations and observations of reality, and varying threshrolds with which to apply the Non-Aggression Principle. Is one person's or PDA's or HMS's ruling more "valid" than another?

Note that market-anarchism is not a utopian world where force is never used against unconsenting parties. However, anarchists like myself do claim that it is a far superior social structure than our current statist prisons, and that by applying the Non-Aggression principle as both the means and the ends, a market-anarchist society will minimize aggression.

Gary, re: jurisdiction - In order for any contact to occur between the HMS-represented party and the alternative service customer, and for some dispute to take place between the two, this might be decided by the owner of the business as a condition of patronage. The owner's specification determines the ultimate arbiters of authority.

Alternatively, it might be that stateless subscribers of WalCourt and other arbitration services are specifically excluded from coverage by WalCourt when in Her Majesty's State controlled areas.

By the way, does the HMS permit the establishment of another HMS in it's territory? It seems to me that it would, unless it forcibly prevents the conglomeration of various competing services.

Thanks, Morey. Part of the fun here is, of course, that there are so many different voluntary arrangements we can imagine people working out. I can't see how the HMS as I've described it could rule out the operation of another HMS within its territory. Once this happened, of course, it would be easy for people to secede wherever they lived, and they could switch back and forth between the two HMSs as better pricing, etc., was offered. At that point, it seems to me, the 'S' in 'HMS' would clearly cease to be appropriate: that is, I think territorial specificity is (I think) essential to statehood; so, without it, the HMS really would become just a specialized protective agency competing in the market with others. Of course, maybe we've destatized it sufficiently that had reached that point already . . . .

About Me

I’m Professor of Law and Business Ethics and Associate Dean of the Tom and Vi Zapara School of Business at La Sierra University and a left-wing market anarchist.
I take anarchism to be the project of doing without the state. I'm a leftist because I support inclusion and oppose subordination, deprivation, and aggressive and preventive war. I’m happy to identify as both, in something not unlike the sense suggested by Benjamin Tucker’s work, a socialist and a libertarian.
Recent books: Anarchy and Legal Order (Cambridge 2013); Economic Justice and Natural Law (Cambridge 2009); Radicalizing Rawls (Palgrave 2014); The Conscience of an Anarchist (Cobden 2011); and Markets Not Capitalism (Minor Compositions-Autonomedia 2011) (co-edited with Charles W. Johnson). Next: Libertarian Theories of Class (co-edited with Ross Kenyon and Roderick T. Long) and Social Cooperation and Human Ecology.